COURT OF APPEAL FOR ONTARIO

CITATION: Bowles v. Al Mulla Group, 2020 ONCA 761

DATE: 20201202

DOCKET: C68342

Fairburn A.C.J.O., Pepall and Roberts JJ.A.

BETWEEN

Samih Mouris Toudrous Bowles

Plaintiff (Appellant)

and

Al Mulla Group and Anwar Abdulla Al Mulla and Ahli United Bank K.S.C.P.

Defendants (Respondents)

Menreet Salama and Peter Karam, for the appellant

George J. Karayannides and Mark C. Mandelker, for the respondents

Heard: November 13, 2020 by videoconference

On appeal from the order of Justice David E. Harris of the Superior Court of Justice, dated April 21, 2020, with reasons at 2020 ONSC 2453.

REASONS FOR DECISION

[1] Following a motion brought by the respondents, the appellant’s action was stayed for want of jurisdiction on the basis that it has no real and substantial connection to Ontario.

[2] In his action initiated on May 14, 2018, the appellant seeks substantial damages against the respondents, including $150 million in general damages and $100,000 in punitive damages. The respondents are all resident in Kuwait with no assets or presence in either Ontario or Canada.

[3] Beginning in May 2006, the appellant was employed by a subsidiary of Bader Al Mulla, one of the respondents, as a used car appraiser. By January 2009, his employment was terminated. He alleges that he was asked by his employer to falsify documents that would be used by his employer to construct a defence to an action relating to vehicles sold to a Kuwaiti individual. The appellant refused to participate in this alleged fraudulent scheme.

[4] As a result of his refusal, the appellant claims that between January 2009 and August 2017, through a conspiracy carried out by the respondents, the police, and the Royal Family of Kuwait, he was arrested, beaten, and tortured in Kuwait, thereby suffering severe, permanent, and life-altering injuries. He says that in August 2017, he fled Kuwait with his family and was granted refugee status in Canada. He further claims he cannot return to Kuwait out of fear for his life because of the respondents who have allegedly made threats through a Twitter account and sent threatening text messages to the appellant in Canada.

The Forum of Necessity Doctrine

[5] While the appellant concedes that his action has no real and substantial connection to Ontario, he submits the motion judge erred by failing to assume jurisdiction in accordance with the forum of necessity doctrine, which is also known as the “forum of last resort”: Van Breda v. Village Resorts Limited, 2010 ONCA 84, 316 D.L.R. (4th) 201, at paras. 54, 100, aff’d on other grounds 2012 SCC 17, [2012] 1 S.C.R. 572. The appellant says that the motion judge erred by failing to consider his refugee status and the threat to his safety if he were to pursue his claim in Kuwait.

[6] We do not accept these submissions. The motion judge correctly considered and applied the forum of necessity doctrine to the evidentiary record before him and declined to exercise his discretion to assume jurisdiction. Absent a misdirection, a lack of weight given to relevant considerations, or a decision so clearly wrong amounting to an injustice, the motion judge’s discretionary decision is entitled to deference on appeal: Ibrahim v. Robinson, 2015 ONCA 21, 380 D.L.R. (4th) 306, at para. 12, citing Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27; Arsenault v. Nunavut, 2016 ONCA 207, at para. 4.

[7] As the motion judge correctly noted, the forum of necessity doctrine operates as an exception to the real and substantial connection test in extraordinary circumstances where there is no other forum in which the plaintiff can reasonably seek relief: Van Breda, at para. 100; West Van Inc. v. Daisley, 2014 ONCA 232, 372 D.L.R. (4th) 613, at paras. 20, 40, leave to appeal refused, [2014] S.C.C.A. No. 236; Forsythe v. Westfall, 2015 ONCA 810, 393 D.L.R. (4th) 141, at paras. 53, 55, leave to appeal refused, [2015] S.C.C.A. No. 460. It allows courts a residual discretion to assume jurisdiction where, despite the absence of a real and substantial connection, there is the need to ensure access to justice: Van Breda, at para. 100. It is well established that this doctrine is “very stringently construed” and “reserved for exceptional” cases, and therefore typically unavailable because of its high bar: West Van Inc., at para. 40; Forsythe, at para. 55.

The Alleged Physical Threat to the Appellant’s Safety

[8] The onus was squarely on the appellant to establish through cogent evidence that his was an exceptional case justifying the court’s rare assumption of jurisdiction on the basis of the forum of necessity doctrine: West Van Inc., at para. 39. As he was entitled to do, the motion judge simply did not accept the adequacy of the appellant’s evidence in support of his assertion that the forum of necessity doctrine applied.

[9] First, the motion judge determined that there was no cogent corroborating evidence of the appellant’s alleged atrocious injuries or of his assertions of harm caused by the respondents, which one would expect given the nature of the alleged harm. Second, the motion judge could not find any credible evidence that the threats via Twitter and the threatening text messages emanated directly or indirectly from the respondents and therefore gave them no weight. Third, he also observed that the appellant had achieved partial success in the proceedings that he had instigated in Kuwait before his departure for Canada, including for loss of his employment.

[10] As a result, the motion judge was not persuaded that the forum of necessity doctrine should be invoked to assume jurisdiction over the appellant’s claims. We see no reason to interfere with his conclusion.

The Appellant’s Refugee Status

[11] We are not persuaded by the appellant’s submission that the motion judge erred in failing to take into account his refugee status in Canada. The motion judge expressly referenced the fact that the appellant came to Canada as a refugee. However, the appellant’s refugee status was not determinative of whether the motion judge should exercise his discretion and assume jurisdiction in accordance with the forum of necessity doctrine. It was only one factor among several in the analysis of all the relevant circumstances that the motion judge considered.

[12] Moreover, before the motion judge, other than his own evidence, the appellant produced no documentation that revealed the basis for his refugee status. Self-serving affidavits with nothing more are insufficient to invoke the application of such an extraordinary order: see Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at para. 31. In answer to his undertaking given on cross-examination dated January 10, 2020, the appellant apparently produced some documentation concerning his refugee status on November 9, 2020; however, this was long after the motion had been argued and disposed of. The appellant did not seek to submit the documentation as fresh evidence on his appeal.

[13] Lastly, we note that while the appellant’s passport was in fact returned to him in 2009, he did not leave Kuwait for Canada until August 2017 and until the conclusion of his various legal proceedings in Kuwait in which he was seeking compensation and was represented by counsel.

[14] We see no error in the motion judge’s decision warranting appellate intervention.

Disposition

[15] Accordingly, the appeal is dismissed.

[16] The respondents are entitled to their partial indemnity costs in the amount of $12,000, inclusive of disbursements and applicable tax.

“Fairburn A.C.J.O.”

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”